No Double Counting After §2K2.1 Cross-Reference; Broad Discretion for Consecutive Federal Sentences to Undischarged State Terms

Case: United States v. Matthew Cory Tucker

Court: U.S. Court of Appeals for the Eleventh Circuit (Non-Argument Calendar) — Unpublished

Date: March 24, 2025

Panel: Newsom, Grant, and Lagoa, JJ. (per curiam)

Docket: No. 24-11566 (appeal from M.D. Ga., No. 1:22-cr-00039-LAG-TQL-2)

Introduction

This appeal arises from Matthew Cory Tucker’s 72-month federal sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). Tucker advanced two challenges:

He argued that the district court impermissibly double counted by applying the two-level firearm enhancement in U.S.S.G. § 2D1.1(b)(1) after cross-referencing from § 2K2.1 based on his attempted commission of another offense.
He contended that the district court abused its discretion by running his federal sentence consecutively to his undischarged Georgia state sentence, rather than concurrently.

The Eleventh Circuit affirmed. In doing so, it reaffirmed two settled principles in the Circuit: first, that applying the § 2D1.1(b)(1) firearm enhancement after a § 2K2.1(c)(1)(A) cross-reference is not impermissible double counting (per United States v. Webb); and second, that district courts possess broad discretion under 18 U.S.C. § 3584, guided by § 3553(a) and U.S.S.G. § 5G1.3(d), to impose consecutive sentences to undischarged state terms—particularly in the context of probation violations.

Summary of the Opinion

The Eleventh Circuit rejected Tucker’s double-counting claim, explaining that its prior decision in United States v. Webb, 665 F.3d 1380 (11th Cir. 2012), forecloses the argument and remains binding under the court’s prior-panel-precedent rule. The panel reaffirmed that the § 2D1.1(b)(1) two-level firearm enhancement addresses a distinct harm and purpose than the § 2K2.1(c) cross-reference and therefore is permissible.

On the consecutive-sentencing issue, the court held there was no abuse of discretion. The district court properly considered the § 3553(a) factors and the Guidelines’ policy favoring consecutive sentences in cases involving violations of release conditions, including probation (see U.S.S.G. § 5G1.3(d) & cmt. n.4(C); United States v. Flowers, 13 F.3d 395 (11th Cir. 1994)). The panel emphasized that § 5G1.3(b)’s concurrency directive is advisory post-Booker and that judges need not mechanically recite each § 3553(a) factor when the record shows meaningful consideration of them.

Disposition: Affirmed.

Analysis

Precedents Cited and Their Influence

United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) and United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006): These cases establish the standards of review: de novo for interpretation/application of the Guidelines and de novo for claims of double counting, with clear-error review for underlying facts.
United States v. Suarez, 893 F.3d 1330 (11th Cir. 2018): Provides the controlling definition of impermissible double counting—occurs only when one part of the Guidelines fully accounts for a harm and another part increases punishment for the same harm. Suarez also recognizes that cumulative application is presumed unless the Guidelines say otherwise and that multiple sections can be triggered by the same conduct if they address conceptually separate sentencing notions.
United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992): The Second Circuit view declared it double counting to add § 2D1.1(b)(1) after using § 2K2.1’s cross-reference to reach § 2D1.1. Tucker leaned on this reasoning, but the Eleventh Circuit had already rejected it.
United States v. Webb, 665 F.3d 1380 (11th Cir. 2012): The Eleventh Circuit’s controlling precedent explicitly rejects Concepcion. Webb explains that § 2K2.1(c)’s cross-reference is designed to punish commission or attempted commission of another offense (often more serious) with the firearm, while § 2D1.1(b)(1) addresses the distinct danger of firearm possession during the drug offense—conceptually separate harms and purposes. Thus, applying both is not double counting.
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008): The prior-panel-precedent rule: a published prior panel decision binds subsequent panels unless overruled by the Supreme Court or the Eleventh Circuit sitting en banc. This foreclosed Tucker’s request to “revisit” Webb.
United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020) and United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Governing standards for consecutive vs. concurrent sentencing: deferential abuse-of-discretion review; error only if the court ignores significant factors, relies on improper factors, or makes a clear error of judgment.
United States v. Henry, 1 F.4th 1315 (11th Cir. 2021): Confirms that § 5G1.3(b)’s concurrency language is advisory post-Booker.
United States v. Covington, 565 F.3d 1336 (11th Cir. 2009): Once § 3553(a) factors are considered, the principal limitation on consecutive sentences is overall substantive reasonableness.
United States v. Stanley, 739 F.3d 633 (11th Cir. 2014): A sentence well below the statutory maximum is an indicator of reasonableness.
United States v. Clay, 483 F.3d 739 (11th Cir. 2007); United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008); United States v. Williams, 557 F.3d 1254 (11th Cir. 2009): Sentencing courts have discretion in weighing § 3553(a) factors and need not explicitly recite each factor on the record if the transcript shows they were considered.
United States v. Flowers, 13 F.3d 395 (11th Cir. 1994): Notes the Guidelines’ policy favoring consecutive sentences upon violations of release conditions (including probation/supervised release), reflected in U.S.S.G. § 5G1.3(d) & cmt. n.4(C) and § 7B1.3 cmt. n.4.

Legal Reasoning

1) The “Double Counting” Claim and the Guidelines Architecture

The court began with the Guidelines framework. Section 2K2.1 governs firearms offenses. If a defendant possessed a firearm in connection with attempting to commit another offense, § 2K2.1(c)(1)(A) directs courts to a cross-reference: apply the higher of (a) the adjusted offense level under § 2K2.1, or (b) the offense level under § 2X1.1 (attempt), which itself typically sends the court to the guideline for the substantive offense if that guideline expressly covers attempts. Drug offenses under § 2D1.1 do just that, so the analysis lands in § 2D1.1. There, the offense level is calibrated primarily by drug quantity (measured in “converted drug weight”), and then specific offense characteristics—including the two-level firearm enhancement in § 2D1.1(b)(1)—may apply.

Tucker argued that, after switching from § 2K2.1 to § 2D1.1 via the cross-reference, it was impermissible double counting to then add § 2D1.1(b)(1) for firearm possession. The panel rejected this contention by invoking Webb’s binding rationale: the cross-reference serves to punish the defendant for the attempted commission of another substantive crime using the firearm (e.g., a drug offense)—that is, it aligns the sentence with the seriousness of the non-firearm offense. By contrast, § 2D1.1(b)(1) punishes the distinct and additional danger posed by the presence of a firearm during the drug offense itself. Because these provisions target separate harms, applying both is consistent with the Sentencing Commission’s design and is not double counting.

The court also relied on general interpretive rules: guidelines sections are presumed cumulative unless the Commission directs otherwise, and different enhancements may be “triggered by the same conduct” when they address different sentencing concepts (Suarez; U.S.S.G. § 1B1.1 cmt. n.4(B)). Nothing in §§ 2K2.1, 2X1.1, or 2D1.1 forbids cumulative application of the cross-reference and the firearm enhancement.

Finally, under the prior-panel-precedent rule (Archer), the panel could not revisit Webb absent abrogation by the Supreme Court or the Eleventh Circuit en banc—which has not occurred. The double-counting claim therefore fails de novo.

2) Consecutive vs. Concurrent Sentencing to an Undischarged State Term

Turning to Tucker’s request for concurrency, the panel emphasized that federal judges generally have discretion to run sentences concurrently or consecutively to undischarged state sentences. Statute and Guidelines frame that discretion:

18 U.S.C. § 3584(a)-(b): Permits concurrent or consecutive terms and requires consideration of the § 3553(a) factors.
U.S.S.G. § 5G1.3(b): Advises concurrency where the other term arose from “relevant conduct” to the instant offense (post-Booker, advisory per Henry).
U.S.S.G. § 5G1.3(d): If the other offense is not relevant conduct, the sentence “may be imposed” to run concurrently, partially concurrently, or consecutively to achieve a reasonable punishment, with commentary listing considerations (type and length of the undischarged sentence, time served, state vs. federal court, timing, and other relevant circumstances).
U.S.S.G. § 5G1.3(d) cmt. n.4(C) and § 7B1.3 cmt. n.4: The Commission recommends consecutive sentences where the defendant committed the federal offense while on probation or supervised release and that supervision has been revoked—reflecting a policy preference for incremental punishment for the breach of trust (Flowers).

Applying a deferential abuse-of-discretion review (Irey; Gomez), the panel found the district court did not err. The sentencing colloquy showed the court considered the nature and circumstances of the offense, the defendant’s history and characteristics, and the need to avoid unwarranted disparities—core § 3553(a) considerations. The judge was not required to tick through each § 3553(a) factor on the record (Gonzalez; Williams) so long as the transcript reflected their consideration. Given the Guidelines’ policy favoring consecutive terms in the context of violations of release conditions and the general discretion preserved by § 5G1.3(d), the consecutive structure was substantively reasonable—especially considering the sentence length and the overall context.

Impact and Doctrinal Significance

Reaffirmation of Webb’s rule in the Eleventh Circuit: Defense challenges arguing Concepcion-style double counting are foreclosed. When § 2K2.1(c)(1)(A) sends the court to § 2D1.1 via § 2X1.1, the § 2D1.1(b)(1) firearm enhancement remains available and appropriate if supported by the facts. Practitioners should calibrate expectations accordingly.
Consecutive-sentencing discretion remains robust: The decision underscores that § 5G1.3(b)’s “shall run concurrently” language is advisory. Where the state term is not “relevant conduct,” judges have broad leeway under § 5G1.3(d) to impose consecutive time to achieve reasonable incremental punishment, especially in probation- or release-violation settings.
Recordcraft matters more than recitation: Appellate review focuses on whether the district court meaningfully considered § 3553(a). Detailed factor-by-factor incantations are unnecessary; a clear, reasoned explanation tailored to the case will be sustained absent clear error of judgment.
Unpublished but still meaningful: Although “do not publish” and non-argument calendar dispositions are nonprecedential in the Eleventh Circuit, this opinion is anchored in binding published authority (Webb; Gomez; Henry; Flowers). It therefore offers reliable guidance about how district courts and the court of appeals will approach these issues.

Complex Concepts Simplified

“Cross-reference” under § 2K2.1(c)(1)(A): If a defendant possessed a firearm and in doing so attempted another offense (often drugs), the Guidelines direct the court to sentence under the guideline for that other offense if it yields a higher offense level. This ensures the sentence reflects the more serious combined conduct.
“Attempt” and § 2X1.1: This provision says to use the guideline for the substantive offense (e.g., § 2D1.1 for drug trafficking) when that guideline expressly covers attempts. § 2D1.1 does, so the court sentences as though the drug offense were attempted.
§ 2D1.1(b)(1) firearm enhancement: Adds two offense levels if a firearm was possessed during a drug offense. The enhancement responds to the increased risk of violence and harm when drugs and guns mix.
“Double counting” in Guidelines practice: Not every overlap is forbidden. It is disallowed only when two provisions punish the exact same harm in a duplicative way. If each targets different sentencing concepts, cumulative application is allowed—even when triggered by the same conduct.
“Converted drug weight”: § 2D1.1 uses a conversion table to normalize different drugs into a single metric that drives the base offense level. For example, the guideline specifies what offense level corresponds to particular ranges, such as an offense level of 28 for 700–1,000 kilograms of converted drug weight (as referenced in the opinion).
Concurrent vs. consecutive sentences (federal to state): - If the state offense is “relevant conduct” to the federal case, the advisory guideline (§ 5G1.3(b)) recommends concurrency.
- If not, § 5G1.3(d) leaves the decision to the judge to achieve a reasonable incremental punishment, considering such things as the length and type of the state sentence and the time already served.
- When the defendant commits the federal offense while on probation or supervised release and that supervision is revoked, the Guidelines recommend consecutive time to reflect the breach of trust.
Statutory reasonableness reference point: A sentence far below the statutory maximum (for § 922(g)(1), up to 15 years under 18 U.S.C. § 924(a)(8)) typically signals reasonableness on appellate review, though it is not dispositive.
Prior-panel-precedent rule: In the Eleventh Circuit, a published panel decision (like Webb) binds later panels unless overturned by the Supreme Court or by the Eleventh Circuit sitting en banc. This preserves stability and predictability in circuit law.

Practical Implications for Litigants

Defense counsel challenging double counting in § 2K2.1(c) cross-reference cases should recognize Webb’s binding force. More promising avenues may include factual disputes about whether the firearm was connected to the drug offense, or contesting the nexus supporting § 2D1.1(b)(1), rather than legal double-counting arguments.
To advocate for concurrent time with a state term, defense counsel should: - Demonstrate that the state offense constitutes “relevant conduct” under § 1B1.3 to trigger § 5G1.3(b)’s concurrency recommendation; and/or
- Develop § 3553(a) arguments emphasizing why concurrent or partially concurrent terms will still satisfy the sufficiency principle without being greater than necessary, especially where there is no supervision violation.
Prosecutors seeking consecutive sentences should document any supervision violations, highlight the Commission’s policy favoring consecutive terms in that setting, and explain why an incremental penalty is necessary under § 3553(a).
District judges will withstand appellate scrutiny by making a clear record that they considered the § 3553(a) factors and the § 5G1.3 framework, even without granular factor-by-factor analysis.

Conclusion

This unpublished Eleventh Circuit decision does not forge new doctrine but cogently reaffirms two settled propositions with practical importance:

The § 2D1.1(b)(1) firearm enhancement may be applied after sentencing shifts to § 2D1.1 via § 2K2.1(c)(1)(A) and § 2X1.1. Under Webb, that combination is not impermissible double counting because the cross-reference and the enhancement address conceptually distinct harms.
District courts retain broad discretion under § 3584 and § 5G1.3(d) to impose consecutive sentences to undischarged state terms when the state offense is not relevant conduct, with the Guidelines endorsing consecutive time in the probation/supervision-violation context. Appellate review is highly deferential so long as the record reflects reasoned consideration of § 3553(a).

For practitioners in the Eleventh Circuit, Tucker reinforces that double-counting arguments of the Concepcion vintage will not prevail, and that thoughtful explanation anchored in § 3553(a) and the § 5G1.3 commentary controls the concurrent-versus-consecutive decision—especially where a probation or supervised-release breach is implicated.